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Thursday, October 29, 2015

The Sorrells filed a lawsuit against a developer of adjacent property and the City for damages resulting from flooding to the Sorrells property. In its third amended complaint against the City, the Sorrells alleged an "inverse condemnation" claim, arguing that the City's approval of the development plans was a "taking" of its property entitling them to money damages. The City filed a motion to dismiss, arguing that the Sorrells did not state a claim for inverse condemnation. The court agreed, and dismissed the lawsuit in Sorrells v. City of Macomb, 2015 IL App (3d) 140763.

The court acknowledged that both the federal and state constitutions prohibit the taking of private property for public use without just compensation. The Illinois constitution provides greater protection than the federal constitution by also providing a remedy not only for a "taking" but also for government actions that "damage" private property. However, in order to prove an inverse condemnation action, a property owner must show that the cause of the damage was government action. In this case, the court determined that the flooding was induced by the private developers, from the overflow of detention and drainage basins, and not from any action by the City. As a result, the Sorrells takings claim was dismissed.

Wednesday, October 28, 2015

As I've noted in past blog posts, there is very little guidance in FOIA as to what constitutes "unduly burdensome" to justify a denial of a large FOIA request. There is one reported case on use of this exemption. That case involved a FOIA request to the Attorney General herself. There, an appellate court upheld the Attorney General's denial of a request as unduly burdensome where the request would require the AG to compile and review 9,000 records. You can read more about this case here.

Just last week, some additional guidance came out of the Public Access Counselor's (PAC) office of the Attorney General on what that office finds unduly burdensome. On October 16th, a requester filed a FOIA request with the PAC requesting 2 items. First, the request asked for copies of all advisory opinions issued by the PAC in response to allegations that a public body violated the Open Meetings Act under 9.5(g) of FOIA. Second, the request asked for copies of any opinions provided to public bodies in response to a public body's request for guidance under 9.5(h) of FOIA. 2015 PAC 038066

With respect to the second request, the PAC responded that it had no such records. Although section 9.5(h) has been around since 2010, apparently the PAC has never responded to a public body's request for guidance under either FOIA or the OMA.

In response to the first request, the PAC determined that the request was unduly burdensome. Specifically, the PAC noted that there were 1,819 responsive records, or approximately 3,638 pages of records. The PAC noted that it would take over 90 hours to complete the review and redaction of these records. As a result, the PAC requested that the requester narrow the scope of the request or it would be denied. The PAC suggested that the request be narrowed to a 2 or 3 month time frame or by specific, identified issues.

Many of you know that I have expressed my opinion that the PAC (the enforcer of transparency in Illinois) could be far more transparent itself by posting these advisory opinions on its website. These opinions would be helpful by providing public bodies with guidance on issues such as what might constitute "unduly burdensome," or how to interpret the public comment requirement of the OMA. Yet, not only are these advisory opinions not available on the PAC's website, according to this letter, they may not be available through FOIA. It certainly seems to be 90 hours well spent to post these advisory opinions online and make them publicly available and accessible. It would also go a long way to demonstrating the importance of transparency by all public officials, including those charged with enforcing these transparency laws.

Tuesday, October 27, 2015

A municipality brought an ordinance violation action against a resident arguing that he was violating local zoning ordinances by keeping chickens on his property. Specifically, the city argued that he was illegally conducting a prohibited agricultural use in a residential district.

The resident defended against the charges by testifying that he had been raising chickens for about 4 years and considers them his pets. He also testified that he does not sell either the chickens or the eggs.

The court rejected the city's argument that raising chickens was an agricultural use, instead finding that his raising of chickens on his property was an incidental permitted use of the residential property, "much the same as having a vegetable garden." The court also noted that normal incidental uses include having pets. Since no commercial farming use was established, the resident could keep his pet chickens. City of Sparta v. Page, 2015 IL App (5th) 140463-U

Monday, October 26, 2015

Senate Bill 1447 would amend the
Administrative Review Law of the Code of the Civil Procedure to do two things:

(1) Exclude as "parties of record" private citizens who are not acting in
an official capacity and whose participation in proceedings before an
administrative agency is limited to attendance or testimony at a public hearing
or submission of written comments to the agency; and

(2) Require the plaintiff
to send notice of filing of the action by certified mail to those individuals
even though they are not a party of record. The notice must be mailed within two
days of the filing of the action for the decision from which the action to
review is taken. The notice must inform the individual of his or her right to
intervene as a defendant in the action by applying to the court within 30 days
of the mailing of the notice.

If this bill passes, an aggrieved property owner who challenges a zoning decision by an administrative agency (like a zoning board of appeals) would not have to name as a party to the lawsuit all members of the public who attended and testified at the zoning hearing. Instead, the aggrieved property owner would have to send notice to those members of the public within 2 days of filing the administrative review action of their rights to intervene, if they so choose.

Friday, October 23, 2015

The PAC issued its 10th binding opinion of 2015 recently. Unfortunately, as with so many other PAC opinions, there is little guidance to local governments on OMA/FOIA issues. As we've noted in the past, the binding opinions typically have little relevancy to the day-to-day requests and issues faced by Illinois local governments. Lately, they've dealt with "one-off" issues such as the Governor's calendar and the Governor's lawyers. The advisory opinions, on the other hand, could be quite helpful to public bodies, if only the PAC would make them more publicly accessible on its website.

Anyway, PAC Op. 15-010 deals with a reporter's request for information listing all outside counsel used by the state of Illinois for 2014 and 2015. The request was denied based on the "attorney-client communication" exemption in 7(1)(m) of FOIA. The PAC rejected the Governor's cited exemption, finding that the responsive records (which listed the law firm or attorney, hourly rate or flat rate, the agency represented, and the general subject matter of the work) did not contain any privileged communications (i.e., details regarding the nature of services provided by the attorneys, the substance of the work performed, or matters discussed between attorneys and clients) that would fall under 7(1)(m). The PAC also rejected the Governor's argument that the records were exempt as "attorney work product," holding that work product is limited to records that reveal the theories, mental impressions, or litigation plans.

Finally, the PAC ordered the Governor to provide responsive records about all of the other law firms that were not included on the lists held by the Governor's office. The PAC rejected the Governor's argument that this would require it to create new records, finding that it could compile a variety of other records containing the information requested by the reporter, even if the information did not exist in the list format requested by the reporter.

Thursday, October 22, 2015

Ancel Glink's land use group recently released a new edition of In the Zone, an e-newsletter that provides updates on cases, legislation, and events of interest to land use professionals. In this edition, you can find articles about Reed v. Gilbert, the Supreme Court case on signs and how other courts have interpreted that case, a look at a historical Supreme Court case and how it affects modern land use authority, as well as a summary of recent Illinois cases and legislation.

Wednesday, October 21, 2015

For our library clients and friends who are attending the ILA conference later this week (Wednesday, October 21-Saturday, October 24), please stop by to say hi and visit with Ancel Glink attorneys who will be presenting at the following sessions:

Saturday, October 24, 2015,9:00
– 10:00 A.M.

Getting Your Budget
and Tax Levy Through Your Municipality

Learn about the legal requirements and political effects
between the library and its municipal host, which should be considered when
either a home-rule or non-home rule municipal library prepares its budget and levy. Library directors will help
lead the discussion.

Speaker: Adam Simon, Ancel Glink

Saturday, October 24, 2015,11:00 a.m. - noon

Library Use of Social Media – Navigating the Legal
Landscape

The use of social media impacts many facets of local
governance and, among other things, is reshaping the ways in which libraries and
their constituents interact. Yet, as with many aspects of technological evolution, these resources bring challenges,
such as the Open Meetings Act and Freedom of Information Act (FOIA) compliance,
privacy and copyright issues, employee usage, and other legal issues.

The Sunshine Laws are intended to ensure that government operates
in a transparent manner. This session will cover the basics of the Freedom of
Information Act (FOIA) and the Open Meetings Act OMA), and also provide updates on recent
Public Access Counselor opinions, cases and legislative amendments to these two
laws.

Tuesday, October 20, 2015

A retail cashier was summoned to a meeting with her supervisor and the store's HR manager to discuss rumors that she was having a relationship with her manager. At that meeting, she alleges she was told to turn over her cell phone or be fired. She turned over her phone, and alleges the HR manager transferred data from her phone to his phone. After the meeting, she alleges she was shunned by her coworkers and eventually resigned. She then sued, seeking damages for an alleged invasion of privacy, defamation, and emotional distress.

The court ruled in favor of the employer. Although employees are entitled to a right of privacy, the plaintiff did not meet her burden to show that the intrusion was "highly offensive to a reasonable person." According to the HR manager's affidavit, he did not read all of her text messages, but only those between the plaintiff and her manager.

The court also noted that she had shared many of these text messages with coworkers. As a result, she could have no expectation of privacy in matters she had openly displayed to others. In short, plaintiff failed to prove her case against her employer. Kaczmarek v. Cabela's Retail, Inc.

Monday, October 19, 2015

Apologies for the three day blog hiatus. Today's case is about dangerous dog determinations, something we've wrote about in the past. Zoller v. City of Chicago.

Many municipalities have adopted ordinances authorizing the municipality to make a determination as to whether a dog qualifies as a "dangerous dog." Typically, such a determination would require the owner to take certain protective measures or could result in the dog being euthanized depending on the severity of the dog's actions. In this case, plaintiff's 100 pound bullmastiff attacked a 39 pound Portugese water dog in a Chicago alley. After an investigation, the city held an administrative hearing and declared the bullmastiff a dangerous animal. The hearing officer ordered the owner to post a sign at her home alerting people of the presence of a dangerous animal, muzzle her dog while off property, and to take various other protective measures. She appealed the determination to the courts.

In reviewing the record of the administrative hearing, the court determined that the city's determination that the dog was a dangerous animal was supported by the evidence. The dog escaped from his dogsitter, raced down an alley, and grabbed the smaller dog in his jaws, inflicting several wounds. The court rejected the dog owner's argument that she should not have to establish that the attack was provoked to defend against the dangerous dog determination. It also rejected her argument that her dog was simply "playing" when he raced at the smaller dog.

Finally, the court rejected her argument that the city's dangerous dog ordinance is unconstitutional, finding the language of the ordinance clear and unambiguous. As a result, the court upheld the city's determination that the bullmastiff was a dangerous dog under the city's ordinance.

Tuesday, October 13, 2015

It's no secret that the issue of severance, retirement, and settlement agreements with government employees has been a hot topic lately - we previously reported on the recent amendment to FOIA to expressly provides that employee severance agreements should be treated as public records in the same way as settlement agreements. It is interesting, however, that the Illinois General Assembly chose to address only community college employee agreements in enacting a new law limiting the terms and provisions of employment agreements.

Public Act 99-0482 (text of the new law is below) becomes effective on September 22nd, but only applies to future agreements, and excludes collective bargaining agreements.

(110
ILCS 805/3-65 new) Employment contract limitations.

(a) This Section applies to employment
contracts enteredinto, amended,
renewed, or extended after the effective date ofthis amendatory Act of the 99th General
Assembly. This Sectiondoes not apply to
collective bargaining agreements.

(b) The following apply to any employment
contract enteredinto with an employee
of the community college district:

(1) Severance under the contract may
not exceed one year salary and applicable benefits.

(2) A contract with a determinate start and end date may not exceed 4
years.

(3) The contract may not include any
automatic rollover clauses, and all renewals or extensions of contracts must be
made during an open meeting of the board.

(4) Public notice, in a form as
determined by the State Board, must be given of an employment contract entered
into, amended, renewed, or extended and must include a complete description of
the action to be taken, as well the contract itself, including all addendums or
any other documents that change an initial contract.

Monday, October 12, 2015

In its 9th opinion of 2015, the PAC found IDOT in violation of FOIA for not turning over surveillance videos of a fatal accident. PAC Op. 15-009. The requester (an attorney for the defendant in a case involving the accident) had filed a FOIA request for the videos. IDOT denied the request, citing that it would be an invasion of personal privacy of the victim's family to release the videos, and the victim could not consent to its release.

The PAC acknowledged that there is a long line of cases, including one decided by the U.S. Supreme Court , holding that family members have a protectable privacy interest in the disclosure of graphic details surrounding their relative's death. Nevertheless, the PAC rejected the reasoning set forth in these cases, instead finding that the victims family's right to privacy was not as important as the attorney's interest in obtaining the video recording of the area surrounding the victim's fatal traffic accident.

Friday, October 9, 2015

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Planning for Religious Uses Under The Religious Land Use & Institutionalized Persons Act. Information about the webcast is below:

Enacted
in 2000, the Religious Land Use & Institutionalized Persons Act (RLUIPA)
has significantly affected the ways in which local governments plan for
religious uses. In some cases, local governments have capitulated under the
threat of RLUIPA litigation. In many others, local governments have instead
vigorously defended their comprehensive plans of development and review of
religious land use applications against such claims. The presenters, who advise
local governments and represent religious land use applicants, will explain
several different strategies and approaches that can be used to avoid RLUIPA
litigation, including through revisions to local zoning codes and accommodating
religious uses when appropriate. The presenters, all with RLUIPA litigation
experience, will also discuss the different types of RLUIPA claims, the life of
an RLUIPA case from start to finish, and approaches that they have found
successful.

Thursday, October 8, 2015

The PAC recently issued a binding opinion finding the Governor's office in violation of FOIA for redacting certain information from his calendar. PAC Op. 15-008. A newspaper reporter had requested a copy of the Governor's calendar for a two month time-period. The requested records were released to the reporter, but certain entries were redacted per the exemptions in sections 7(1)(f) and 7(1)(m) of FOIA.

The reporter filed a request for review with the PAC, arguing that (1) the Governor did not respond within the required statutory time period and (2) improperly redacted names of individuals identified in the calendar. The Governor argued that the redacted calendars were not public records for purpose of FOIA because it was meant as a personal aid for the Governor.

The PAC rejected the Governor's arguments, finding first that the Governor failed to comply with the 5 day time period for response. Second, the PAC rejected the argument that the calendar was not a public record, finding that the calendar was prepared by the Governor's office and pertains to public business. Third, the PAC rejected the Governor's argument that disclosing details of the Governor's calendar constitutes a security concern. The PAC also rejected his argument that the calendar and its entries constituted "predecisional deliberative material" that would be exempt under 7(1)(f). Finally, the PAC did not accept the Governor's argument that meetings with legal counsel constituted an "attorney-client communication" protected by 7(1)(m).

In short, the PAC found the Governor in violation of FOIA and ordered him to turn over his unredacted calendar to the reporter.

Wednesday, October 7, 2015

The Illinois Appellate Court recently found that a City’s
repair of a property owner’s roof was within the City’s police powers.
The City had issued a building permit to an owner for construction of a garage on
his property in 1975. The owner obtained another permit the following
year to remodel and construct an addition to another property. By 2010,
the owner had not completed either project, so the City sued him to declare the
permits null and void and to compel him to complete construction in accordance
with the City’s code.

The parties entered into a “consent decree and order,” after
which the owner still failed to complete construction pursuant to the order’s
terms. The City then sought a court order under section 11-31-1 of the
Illinois Municipal Code to allow it to repair the properties, so that they
could be completed according to the City code.

The City presented a number of issues with the properties,
noting a lack of compliance with the City’s code and possible fire
hazards. At a hearing on the City’s application for a repair order,
the court found that the properties were unsafe and dangerous, allowing the
City permission to remediate, but not alter “aesthetic issues.”

The City then installed a traditional shingle roof,
replacing the existing, unique roof. The owner then filed suit against
the City, arguing that it disassembled and discarded partially installed
components of his unique roof. The court dismissed his arguments and he
appealed.

The Illinois Appellate Court evaluated whether the City’s
repair using a shingle roof constituted a use of its police powers or a
taking. The owner argued that although the City was permitted to make the
repairs, the City exceeded the scope of the order by demolishing his
roof. The Appellate Court disagreed and found that the City’s actions
constituted a use of its police power, rather than a taking. The court
found that the owner had no cause of action and that the City’s conduct was
authorized under Section 11-31-1 of the Illinois Municipal Code, noting that an
owner does not have the right to allow his property to fall into such disrepair
as to create a public safety hazard. Further, the court stated that
the City’s police power is not limited to the remediation of damages that affect
the general public, but also extends to dangers that affect only dangers
directly connected to the property. McIlvaine v. The City of St. Charles, 2015 IL App (2d)
141183 (September 23, 2015).

Tuesday, October 6, 2015

The City of Chicago imposed a tax on the lease of all
personal property within the City. In 2011, the City adopted the Personal
Property Lease Transaction Tax Second Amended Ruling No. 11 (“Ruling 11”) to
serve as guidance for application of the tax on the use of vehicles leased by
City residents from rental companies within three miles of the City
borders. Enterprise and Hertz filed actions against the City, seeking
declaratory and injunctive relief against the City’s attempt to tax car rentals
that occur within three miles of the City borders. The circuit court
found Ruling 11 to be unconstitutional and permanently enjoined the City from
enforcing the ruling with respect to short term rentals occurring outside the
City.

On appeal, the Illinois Appellate Court vacated the
injunction and ruled in favor of the City. Hertz
and Enterprise had argued that Rule 11 constituted a transaction tax which
improperly allowed extraterritorial taxation of rental car transactions outside
of the city limits. The City countered that the tax is not a transaction
tax, but instead only imposes a tax on City residents who lease vehicles in
surrounding areas and then use them primarily in the City. The court
found the tax constitutional, finding that it did not constitute an
unauthorized extraterritorial exercise of its taxing authority. The court
noted that Enterprise and Hertz had enough connection to the City to be
considered an agent for collection of the tax. Further, the nexus between
Enterprise and Hertz with the tax and the City was reasonable. The
Hertz Corporation v. City of Chicago, 2015 IL App (1st) 123210 (September 22, 2015).

Friday, October 2, 2015

The
American Planning Association(APA) Illinois State Conference is being held October
7 – 9 at the Marriott Hotel and Conference Center in Normal, Illinois.Ancel Glink attorneys David Silverman, Dan
Bolin, and Greg Jones are presenting sessions discussing current legal and
legislative issues impacting the planning, economic development, and real
estate fields.Catch up with your Ancel
Glink attorneys at one of their sessions or stop by Ancel Glink’s booth in the
exhibition hall to chat.

Thursday, October 1, 2015

Recently, the interpretation of the "private information" exemption of the Illinois Freedom of Information Act has come into question in the context of FOIA requests filed with a number of Illinois public bodies requesting the home addresses of members of a public body. FOIA exempts from release records or information that fall within the definition of "private information":

(c-5) "Private information" means unique
identifiers, including a person's social security number, driver's license
number, employee identification number, biometric identifiers, personal
financial information, passwords or other access codes, medical records, home
or personal telephone numbers, and personal email addresses. Private
information also includes home address and personal license plates, except as
otherwise provided by law or when compiled without possibility of attribution
to any person.

The law seems pretty clear - the definition expressly references "home address" as exempt information. Thus, it certainly seems that the home addresses of public officials would be exempt from release. Earlier this year, an appellate court agreed with that interpretation in the unreported decision of Ward v. Weisbaum, 2015 IL App (3d) 130852-U.

In that case, Mr. Ward filed a FOIA request with the secretary of state requesting the home addresses of certain county officials, including the recorder of deeds, deputy recorder of deeds, and a notary public. The state denied the request, citing the "private information" exemption, and Ward sued, arguing that the home addresses were not exempt.

The appellate court ruled in favor of the state, and dismissed the case. The court noted that the definition of "private information" specifically references home addresses, and therefore the public officials' home addresses were not subject to release under FOIA. The court also noted that there was no provision of law that required disclosure of the home addresses. As a result, the state did not violate FOIA in denying the FOIA request for the officials' home addresses.